Deterrence Undermined

Criminal law has several ends. One of them is to use the threat of punishment to deter people from performing acts that are considered “crimes”. If some of those who commit crimes remain unpunished, deterrence may be reduced. Couldn’t the availability of the insanity defense have such an effect? Morse and Bonnie write:

Successful insanity defenses are so rare that deterrence will not be undermined, because few legally sane defendants will believe that they can avoid conviction by manipulatively and falsely raising the defense. (…) Further, it is best estimated that the insanity defense is raised in less than one percent of federal and state trials and is rarely successful (…) Insanity acquittals are far too infrequent to communicate the message that the criminal justice system is soft or fails to protect society.¹²

11Morse and Bonnie (2013, p. 494). In this context, a comment made by Appelbaum, chair of the APA Council on Psychiatry and Law, on a 5–4 U.S. Supreme Court ruling that “allowed states to bar psychiatrist testimony” may also be of relevance. He says: “Ultimately they seemed to rest the justification on the grounds that there is something about expert testimony on psychiatric issues that is inherently less reliable and more confusing than other sorts of testimony, and there-fore it was not unreasonable for the state to seek to exclude it in these circumstances.” (Quotes taken from Psychiatric News 2006, Vol. 41, No. 15, pp. 13–14, by Rich Daly.)

12Morse and Bonnie (2013, p. 494). They discuss these issues under the headings “public safety” and “beating the rap.”

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In other words, the insanity defense would not convey the message that you can get away with serious crimes. Still, the mere fact that Morse and Bonnie explicitly mention the low success rate of the insanity defense may suggest that not every-one is familiar with it. Deterrence may be undermined if people know about the defense but not about the low success rates. Deterrence, at least in part, is not about facts, but about what people believe to be the case. It might even be that, psychologically, the mere possibility of an insanity defense is what people pick up on, and what might diminish deterrence. What Morse and Bonnie basically say is that it is not rational, given the low success rates, to consider insanity an easy way out, and, therefore, that there is no justification for considering the insanity defense as diminishing deterrence—but not all people are always rational, and, moreover, not all people are well-informed.

Morse and Bonnie (2013, p. 494) appear to be aware of this when they talk about the symbolic value of successful defenses: “It is impossible to measure pre-cisely the symbolic value of these acquittals, but it is also hard to believe that they have much impact on social or individual perceptions.” True, to measure the sym-bolic value precisely may be impossible, but it may not be impossible to study the public perception of the defense via a survey or interviews. One may not only survey the general public, but people who have been convicted as well. How did, and do, they feel about the insanity defense as a way out? What success rates did they have in mind? Did it somehow affect their decision to commit a crime? Such research might provide some clues about whether deterrence is diminished by the insanity defense, and if so, to what extent.

An article by Daftary-Kapur et al. (2011) is of interest here. They studied lay-persons’ knowledge regarding the insanity defense. In fact, they developed an instrument, the KIDS (Knowledge of the Insanity Defense Scale), to measure knowledge and misconceptions about the insanity defense. There appear to be many inconsistencies between knowledge and reality. For instance, both the plea rate for insanity and the success rate are much lower than people think it is. In addition, people tend to think that those who plead insanity are usually faking, while this is not supported by the available evidence.¹³ If these laypersons were jurors, their ignorance could have consequences for the verdict. Daftary-Kapur et al. (2011, p. 60) state: “Attorneys can make use of the KIDS to identify jurors who harbor misconceptions about the insanity defense. This could be useful in trial strategy as attorneys can call experts to educate them as well as tailor their case with an understanding of these myths and how they might affect the verdict.” But, of course, “laypersons” may not only be jurors, they may commit crimes as well.

In such a case, deterrence may be undermined by misconceptions about the insan-ity defense. In support of the findings by Daftary-Kapur et al., Hans and Slater (1983, p. 209) concluded, based on a telephone survey of 434 respondents shortly

13The study also showed that people tend to think that pleading insanity entails no risk to a defendant, while the opposite is true: raising the defense implies admitting he committed the crime—of course this depends on the jurisdiction.

3.4 Deterrence Undermined

50 3 Arguments Against the Insanity Defense and Responses

after the Hinckley verdict: “Despite intense media coverage of the Hinckley case, knowledge of the insanity defense was not extensive, supporting previous research showing that the public is not well informed about the insanity defense.”¹⁴

To show that deterrence is not significantly undermined, Morse and Bonnie (2013, p. 494) also write: “More important, every jurisdiction provides for commitment to a secure mental facility after a defendant has been acquitted by reason of insanity and the Supreme Court has approved the constitutionality of indefinite confinement (with periodic review) of such acquittees as long as they remain mentally disordered and dangerous.” However, such commitment (as well as its length) may depend on the case and the legal system. For instance, in the Netherlands, there are cases in which there was no commitment to a forensic psy-chiatric hospital after the defendant was acquitted on grounds of insanity; the defendant was “free to go.” Such cases are rare, but media coverage may be exten-sive and it may affect people’s perception of legal insanity. Another point is that, with the availability of proper treatment, some defendants who have been acquit-ted on the grounds of insanity and commitacquit-ted to mental hospitals will be released after a short period of time.¹⁵ Furthermore, Daftary-Kapur et al., found that the public also underestimates the amount of time those acquitted on the grounds of insanity spend in custody. So, people may still perceive the defense as a way out.¹⁶

In sum, although a well-informed and rational judgment based on the actual suc-cess rates most probably leads to the conclusion that the insanity defense should not significantly undermine deterrence, it may still do so, at least to some extent.

Diminished deterrence, however, need not always be wrong. People may be more deterred if draconic sentences await them for all kinds of minor offences, but is that desirable and fair? People may also be less deterred because they have the right to remain silent and to have an attorney. But we feel this is fair—good—so this is part of the legal system even if it may result in less deterrence. Fairness and doing justice are important to the legal system as well. The insanity defense could increase belief in the fairness of the system.

Probably, whether or not people are less deterred depends, in part, on whether they believe they can mislead behavioral experts by faking symptoms of mental illness. The possibility of successful faking will be considered in the next section.

14See also Hans and Slater (1983, p. 207): “The question asking for people’s definitions of legal insanity indicated very little knowledge of the elements of the test for legal insanity. Only one of our 434 respondents gave a reasonably good approximation of the Model Penal Code definition of legal insanity which was used in the Hinckley case and was employed here in Delaware at the time of the Hinckley trial.”

15Morse and Bonnie (2013, p. 494): “It is of course true that acquittees may be released earlier than if they had been convicted and imprisoned…” See also Sinnott-Armstrong and Levy (2011, p. 321).

16Not much information is available about recidivism of insanity acquittees following release from supervision (Norko et al. 2016). Of a sample of insanity acquittees in Connecticut dis-charged from the Psychiatric Security Review Board, 16 % were rearrested, “a rate that compares favorably with other discharged populations of offenders,” according to Norko et al.

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